Question
From:
(Redacted)
Sent:
Wednesday, March 10, 2010 9:36 PM
To:
Verne, B. Michael
Cc:
(Redacted)
Subject: Foreign Person Analysis-Principal Offices Determination 801.1(e)
Dear Mike, We are seeking to confirmthat two separate ultimate parent entities ("Fund A" and "FundB") are foreign persons for HSR purposes.
With respect to Fund A:
Fund A is its own ultimate parent entity; Fund A'sheadquarters address is in Europe and it is organized under the laws of theCayman Islands; Fund A, which has no officers, has two directors: one is aEuropean citizen whose residence and office are in the Cayman Islands; thesecond is a European citizen whose residence and office are in the CaymanIslands;
Fund A maintains its organization documents in theCayman Islands;
Fund A does not have an office in the US;
Fund A's essential functions, i.e., raising money,administration (fund accounting, tax, investor reporting, etc.) and investingare carried out on behalf of Fund A by other entities not controlled by (andnot controlling) Fund A;
The investment manager and investment advisor forFund A are located in the US, but again, those entities are not controlled by(and do not control) Fund A;
The Fund's financials are prepared in accordance withUS GAAP, and independent auditors are engaged in the US.
Board meetings are typically held telephonically witheach director participating from his respective office, although on occasionone or both of the directors will travel to the US to hold a meeting at theoffice of Fund A's investment manager and investment advisor.
With respect to Fund B:
Fund B is its own ultimate parent entity;
Fund B's headquarters address is in Europe and it isorganized under the laws of the Cayman Islands;
Fund B has no officers or directors;
Fund B maintains its organization documents in theCayman Islands; Fund B does not have an office in the US; Fund B's essentialfunctions, i.e., raising money, administration (fund accounting, tax, investorreporting,
The investment manager and investment advisor forFund B are located in the US, but again, those entities are not controlled by(and do not control) Fund B;
The Fund's financials are prepared in accordance withUS GAAP, and independent auditors are engaged in the US.
Fund B does not have Board meetings (because it hasno directors) but official investor meetings would be held in the CaymanIslands.
We believe that under thesecircumstances both Fund A and Fund B are not organized under the laws of the USand do not have their principal offices in the US. We would appreciate if youcould please confirm our view.